Bickell v. The Country Grill, 2011 HRTO 107

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Amanda Bickell

Applicant

-and-

The Country Grill

Respondents

INTERIM DECISION

Adjudicator: Alison Renton

Date: January 14, 2011

Citation: 2011 HRTO 107

Indexed as: Bickell v. The Country Grill

1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), on December 8, 2009, alleging discrimination in employment because of sex (pregnancy).

2On January 26, 2010, the Tribunal issued a Notice of Application to the respondent. The respondent was advised that a Response must be filed with the Tribunal not later than 35 days after January 26, 2010. No Response was received.

3Consequently, the Tribunal issued an Interim Decision dated May 10, 2010, 2010 HRTO 1041 ("the May Interim Decision"), in which the Tribunal noted the failure of the respondent to file a Response and provided the respondent until May 13, 2010, to file a Response together with an explanation of why the Response was not filed in accordance with the original Notice of Application. The May Interim Decision further stated that if the Response was not received, the Tribunal might proceed without further notice to the respondent and it might take any or all of the steps set out in Rule 5.5 of the Tribunal's Rules of Procedure. Pursuant to the order set out in the May Interim Decision, a copy of the May Interim Decision was sent to the respondent by regular mail and courier.

4The Tribunal issued an Interim Decision dated June 23, 2010, 2010 HRTO 1408 ("the June Interim Decision"), when the respondent failed to file a Response as directed in the May Interim Decision. In the June Interim Decision, the Tribunal stated at paragraphs 7 and 8:

It has now been more than one month since the Response and accompanying explanation for the delay were due. No Response has been received from the respondent, despite having received notice of the Application and an Interim Decision regarding this matter. I am satisfied that the respondent has received notice of the Application and notice of the Tribunal's Order directing it to file a Response. It appears that the respondent refuses, or has chosen not to participate in these proceedings, notwithstanding notice of the implications of Rule 5.5. In the circumstances, the Tribunal orders that the respondent is deemed to have waived all rights with respect to further notice or participation in the proceeding.

The Tribunal will proceed without the participation of the respondent and deems the respondent to have waived its right to participate pursuant to Rule 5.5(c) and further deems the respondent to have accepted all of the allegations set out in the Application pursuant to Rule 5.5(a). Before the Tribunal finally determines the Application, the applicant will be provided an opportunity to file any documents or materials she may wish the Tribunal to consider and to make oral submissions via teleconference.

5The copy of the June Interim Decision sent to the respondent was not returned to the Tribunal.

6The Tribunal issued a Notice of Confirmation of Hearing on December 14, 2010, to the applicant, copying the respondent, scheduling the hearing for March 2, 2011 in London.

7A typed letter dated December 21, 2010, was sent to the Tribunal by an individual who identified himself as an employee of the respondent and stated that he was writing on behalf of John Krimpas, whom the applicant had identified as being the owner of the respondent. The letter states:

On Monday, December 20, I was asked to open and read a letter that had been mailed o the "country grill Attention John Krimpas" [sic]. Mr Krimpas's first language is Greek and his English isn't very good, and in addition his sight is quite deteriorated because of his health and age he wouldn't be able to decipher the meaning of the letter. If I hadn't been working that afternoon and offered to read the letter and decipher it for him, he would still be in the dark as to the impending court date. On a daily basis, Mr. Krimpas receives a lot of mail, mostly bills but also a majority of junk mail. Mr. Krimpas assumed it was junk mail because it's not something that he normally would get in the mail, and he wasn't expecting it.

It's not a perfect system that he is working with however because of his limitations with his sight and his understanding of English and his hectic schedule and the amount of junk mail that is received on a day to day basis he must have passed off previous letters perhaps to [sic] quickly as junk mail, the letter was explaining that there is a set court date in London, Ont.

Because of his disabilities, Mr. Krimpas asked that I call on his behalf to inquire about moving the court appearance to perhaps somewhere closer to his home. When I called I was informed that he wasn't even supposed to receive the letter because there had been no response to previous letters and as a consequence there was a ruling that he wasn't going to be able to participate in the hearing.

Mr. Krimpas absolutely wants to participate and it is his right to participate if he had been aware of the situation he would have promptly responded. In light of the situation and with no attempt made to contact him by phone or in person, Mr. Krimpas should be allowed to participate, as this is what he wants and rightfully should be given the opportunity. Please, any further contact needs to be done over the phone with Mr. Krimpas personally.

8Despite previous correspondence issued by the Tribunal to the respondent, most of which was sent by courier as well as regular mail, until the December 21 letter, the respondent has not responded to the Tribunal's communications. Now the respondent indicates that it wishes to participate in the proceedings.

9Rule 1.7(a) of the Tribunal's Rules provides:

1.7 In order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may:

(a) lengthen or shorten any time limit in these Rules;

10In these circumstances, with the hearing date scheduled for March 2, 2011, the Tribunal directs the respondent to deliver to the applicant and file with the Tribunal a Response (Form 2), copies of all relevant documentation and documents upon which it intends to rely at the hearing, identification of its witnesses and a summary of their anticipated evidence and Statement of Delivery (Form 23) showing the materials were delivered to the applicant within five days of the date of this Interim Decision. The respondent should note the applicant's address as reflected on the Tribunal's Notice of Confirmation of Hearing dated December 14, 2010. Along with this Interim Decision, the Tribunal will resend to the respondent by courier and regular mail a copy of the Application and other communications that have been sent by the Tribunal to the parties. The Tribunal will also telephone the respondent to advise that the Tribunal's correspondence has been sent.

11In addition to filing a Response within five days of the date of this Interim Decision, the respondent is also directed to deliver to the applicant and file with the Tribunal with any additional information upon which it relies in addition to the December 21 letter to explain why it did not previously file a Response. In particular, the Tribunal directs the respondent to provide an explanation as to why Tribunal correspondence that was previously couriered to it (which includes the May Interim Decision (which enclosed the Application) and the June Interim Decision), and which was not returned to the Tribunal, was disregarded by the respondent. The respondent is directed to deliver and file this additional information to the Tribunal within five days of the date of this Interim Decision.

12If the respondent does not comply with these directions, the Tribunal will likely again deem the respondent to have accepted all the allegations set out in the Application pursuant to Rule 5.5(a) and will likely proceed without the participation of the respondent and deem it to have waived its right to participate pursuant to Rule 5.5(c).

13The applicant has five days from the date she receives the respondent's materials to deliver to the respondent and file with the Tribunal any submissions she wishes to make, if any, if she intends to object to the respondent now being able to participate in these proceedings. The Tribunal will consider any material filed by the respondent and the applicant after the time periods reflected in this Interim Decision have passed and determine whether the respondent will be able to participate in these proceedings.

14The Tribunal confirms that it has not received from the applicant copies of any documentation upon which she intends to rely at the hearing, her list of witnesses and a brief statement of their anticipated evidence as directed in the Tribunal's November 8, 2010 correspondence. If the applicant intends to rely upon documentation or witnesses, she is directed to deliver that material to the respondent and file it with the Tribunal immediately.

15Any party requiring accommodation, including changing the location of the hearing to accommodate a party, should refer to the Tribunal's Policy on Accessibility and Accommodation which is found on the Tribunal's website at www.hrto.ca.

ORDER

16The Tribunal makes the following order:

a) Within five days of the date of this Interim Decision, the respondent shall deliver to the applicant (noting her address as reflected on the Tribunal's December 14, 2010 correspondence) and file with the Tribunal a Response, copies of any documentation that is relevant to the pleadings, copies of any documentation upon which it intends to rely at the hearing, and a list of witnesses and a summary of their anticipated evidence;

b) Within five days of receipt of the respondent's materials, the applicant shall deliver to the respondent and file with the Tribunal any submissions she has if she objects to the respondent now participating in these proceedings;

c) The applicant is directed to immediately deliver to the respondent and file with the Tribunal copies of documentation upon which she intends to rely at the hearing, her list of witnesses and a summary of their anticipated evidence.